A stark hangover has followed celebration and joy in Boston and across America, as Americans go from a passing moment’s relief when hearing about Dzhokhar Tsarnaev’s capture to an unresolvable debate about what to do with him. The prosecution of the War on Terror, despite whatever euphemism it goes by under the Obama administration these days, strains the rules and norms of our legal system. The exigencies of a "ticking time-bomb," the difficulties presented by "classified" evidence, and inevitable biases that a besieged America will develop over time against Muslims and those accused of acts of terrorism all make the prosecution of this struggle in conventional American courts controversial in theory and problematic in practice.
Many of these problems presented themselves in the days and months leading up to the events of 9/11, in the trial of Wadih El-Hage, a Lebanese-born American citizen who was convicted of conspiring to commit terrorism in 2001. Known by most Americans through the press as "bin Laden's secretary," El-Hage supported a variety of terrorist plots during the 1990s and had operational knowledge of many more. El-Hage, though tried and convicted a dozen years ago, just today received his sentence — life in prison without the possibility of parole. Barred from testifying by his lawyers throughout his 12 years in the justice system, El-Hage took his sentencing as a first and final opportunity to speak, launching a 45-minute speech that dubbed everything from 9/11 to Hurricane Sandy as divine punishment for the injustices and biased treatment he suffered in the legal system.
Despite his established guilt, El-Hage's trial, spanning almost the entire length of the War on Terror, highlighted the many ways in which our legal system falls short in prosecuting terror suspects. First of all, terror suspects during the pre-trial phase are held in conditions that, in many cases, far exceed the strictures that face the most heinous of convicted criminals. Called Special Administrative Measures (S.A.M.), these guidelines call for suspects to be held in prolonged solitary confinement, within minimal access to family and outside news. These conditions, in the words of a Harvard psychiatrist, inevitably lead to severe psychological deterioration, rendering suspects unfit to contribute meaningfully to their own defense.
Much of the evidence that the government was present against El-Hage was deemed legally sensitive, if not outright classified, severely restricting the defense's ability to use and handle that information. In many cases, El-Hage was not able to review directly the evidence being used against him, lacking the required security clearance. These restrictions deprive suspects of their Sixth Amendment rights, including the right to confront your accusers. Those are rights that, despite what the courts may think, cannot be meaningfully exercised through an attorney.
Even if all of these problems were resolved, America's entire attitude towards terrorism, though justified, threatens a suspect’s right to a fair trial. Many of the witnesses El-Hage's defense team sought for the trial refused to testify because they were scared to associate themselves with a suspected terrorist and paint themselves as sympathizers. In September 2000, El-Hage's lawyers petitioned a federal judge, claiming that their witnesses "have been threatened, pressured and warned that the government believes they are lying." It seems that merely standing accused of terrorism deprives a suspect of many of the tools and legal opportunities that defendants in other cases can avail themselves of.
The Dzhokhar Tsarnaev case has sparked a reexamination of the role that Miranda rights play in terror cases. Though Attorney General Eric Holder played down any fears that further bombings were likely, the "public safety" exception to Miranda rights was used to deny Tsarnaev access to an attorney. The Obama administration has used a similarly expansive definition of the "public safety" exception for the Times Square bomber and the underwear bomber, though no court ruling has yet approved of this legal tactic.
The current public safety exception, born out of a 1984 case where officers asked a suspect about the location of a missing gun, has been upheld by the courts due to its extremely time-sensitive and dangerous nature, a description that the government has not used to characterize recent situations when it used the exception. Although enough evidence exists to convict Tsarnaev without his un-Mirandized confession, future interrogations under this system potentially endanger the successful prosecution of terror suspects.
Our legal system, over centuries, has had the benefit of treating terrorism as something rare. That has changed in our lifetime, and the legal system will have to adapt in order to legitimately prosecute terror suspects. These reforms, if they ever happen, will only happen because we are less afraid of terrorism than we were on 9/11, more confident in our commitment to a fair legal system, and strong in standing against those who continue to claim that the Constitution is only for easier days and fewer controversial crimes.